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Douglas Kmiec: Seeking a successor to Justice Kennedy's complex legacy

Asia Pacific Daily

July 11, 2018  | 1 min read

An article by Professor Douglas W. Kmiec, U.S. Ambassador (Ret.), "Seeking a successor to Justice Kennedy's complex legacy," has been published in the Asia Pacific Daily. The article considers Supreme Court Justice Anthony Kennedy's retirement and examines the due process and equal protection nature of his rulings.

Excerpt from "Seeking a successor to Justice Kennedy's complex legacy":

This being an election year, Justice Anthony Kennedy's retirement came as a surprise. Was the timing simply observance of the unstated rule that a justice tries to resign when his political party is incumbent, or did it represent - like the reputation of Justice Kennedy himself - that the electoral question could go either way?

The Supreme Court's 2017-2018 term involved everything from whether a baker with religious objection could be required to cater same-sex weddings, to the legitimacy of presidential limits on migratory and refugee travel, to the collectability of so-called agency fees from nonmembers of public-employee unions. As disparate as these may seem, each case asked the court to resolve the tension between individual liberty and governmental power. Justice Kennedy was in the majority in each.

As Kennedy wrote at the time of his confirmation, "one can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system."

The complete article may be found here